2025 INSC 420
SUPREME COURT OF INDIA
(AHSANUDDIN AMANULLAH AND
PRASHANT KUMAR MISHRA, JJ.)
YADWINDER SINGH
Appellant
VERSUS
LAKHI ALIAS
LAKHWINDER SINGH & ANR. ETC.
Respondent
Criminal Appeal Nos.________OF
2025 [Arising out of SLP (Crl.) Nos.14822-14829 of 2024]-Decided on 26-03-2025
Criminal
Criminal Procedure
Code, 1973, Section 319 – Criminal Procedure - Summoning as additional accused
– Prayer for – Though, the SIT found no evidence
against the private respondents yet such factum by itself puts no fetters on
the powers bestowed under Section 319 of the Code - Moreover, eye-witnesses in
the Trial Court have named the private respondents as persons present on the
site of occurrence - The hardship, were we to adjudge it at this juncture,
could be more if the private respondents are not summoned than opposed to if
they are - Private respondents will have
all defences open to them before the Trial Court to put forth their version of
innocence, including by way of resort to cross-examination - Trial being an exercise to unravel the truth,
given the depositions before the Trial Court, to absolve the private
respondents based on the SIT's findings alone may not be in the best interests
of justice - Indubitably, while an innocent person should not be punished, no
guilty person should go scot-free - Discretion exercised by the Trial Court
cannot be said to be capricious/arbitrary/mechanical in juxtaposition with the
facts - Impugned Order passed by the High Court liable to be set aside - Trial
Court shall issue fresh summons against the private respondents.
(Para
16 to 19)
JUDGMENT
1. Leave granted. By way of
extraordinary indulgence to the respondents, we have taken up the matter(s) de
novo. The instant Judgment be, therefore, read and contextualised in
conjunction with our Order dated 19.03.2025.
2. Heard learned counsel and
learned senior counsel for the parties.
3. The present appeals are
directed against the Impugned Order dated 18.07.2024 [2024 SCC OnLine P&H
11673] passed by a learned Single Bench of the High Court of Punjab and Haryana
at Chandigarh by which summons issued under Section 319['329. Power to proceed against other persons appearing to be guilty of
offence.—(1) Where, in the course of any inquiry into, or trial of, an offence,
it appears from the evidence that any person not being the accused has
committed any offence for which such person could be tried together with the
accused, the Court may proceed against such person for the offence which he
appears to have committed.
(2) Where such
person is not attending the Court, he may be arrested or summoned, as the
circumstances of the case may require, for the purpose aforesaid.
(3) Any person
attending the Court, although not under arrest or upon a summons, may be
detained by such Court for the purpose of the inquiry into, or trial of, the
offence which he appears to have committed.
(4) Where the Court
proceeds against any person under sub-section (1) then—
(a) the proceedings
in respect of such person shall be commenced afresh, and the witnesses reheard;
(b) subject to the
provisions of clause (a), the case may proceed as if such person had been an
accused person when the Court took cognizance of the offence upon which the
inquiry or trial was commenced.']
of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code')
by the learned Trial Court against the private respondents in connection with
First Information Report No.50 of 2020 (hereinafter referred to as 'FIR')
registered at Police Station Passiana, District Patiala, Punjab were set aside.
APPELLANT'S SUBMISSIONS:
4. Learned counsel for the appellant,
Mr Jitesh Malik, submits that the appellant is the complainant/informant and
his brother had died. It was submitted that in the FIR itself, all the
respondents/accused were identified 'in the light of the car'[We take it that this means that the identity
of the accused was discernible to the appellant-complainant despite it being
8.30pm in the night.] and it was a brutal murder where the deceased was
pulled out from the car and then done to death. Learned counsel submitted that
the issuance of summons was on the basis of the tentative view formed by the
Trial Court, being that of likely involvement of the private respondents in the crime and ought not to have been
interfered with by the High Court at such a preliminary stage, especially when
the Trial Court had found sufficient material to summon the private
respondents/accused. Prayer was made to allow the appeals.
PRIVATE RESPONDENTS' SUBMISSIONS:
5. Per contra, the private
respondents led by Mr. Gopal Sankaranarayanan, learned senior counsel, submit
that the instant is not a fit case where this Court should interfere. It was
contended that power to summon a person as accused under Section 319 of the
Code, though exists on the statute-book but is to be sparingly used and under
very fitting circumstances. It was submitted that the Courts have consistently
held that the test would be higher than at the stage of framing of charge and
just short of holding a person guilty of the charge. It was submitted that in
the present case, as per the allegation in the FIR itself, 24 persons had come
on three different vehicles, which, to begin with, was highly improbable and
impractical. Further, it was submitted that the complainant's initial version
is that he along with the deceased were travelling in the car, whereas in his
deposition before the Court, it is stated that three persons were travelling in
the car i.e., PW1 (who is the informant himself) along with the deceased and
their other brother i.e., PW2. It was urged that this was not a minor and
natural variation but a clear building-up of a case against others and to get
additional eye-witnesses created, since there was no other independent
corroboration of the incident in question.
6. Learned senior counsel
submitted that in the present case, after the lodging of the FIR, a Special
Investigation Team (hereinafter referred to as 'SIT') was set up to verify the
facts because of the sensitive nature of the incident. It was advanced that the
SIT found that the respondents could not have been at the place of occurrence
for cogent reasons both on the basis of witnesses supporting their presence at
some other place(s) and also on the basis of CCTV[Abbreviation for Closed Circuit Television.] footage, which is
electronic evidence. Learned senior counsel submitted that the fall-out was due
to political rivalry as the deceased was a sitting Sarpanch. In support of his
contentions, he relied upon Brijendra Singh v State of Rajasthan, (2017) 7 SCC
706 to contend that the power to summon under Section 319 of the Code has been
circumscribed by the conditions laid down by this Court from time-to-time.
Going by the same, in the present case where only two prosecution witnesses,
that too close relatives of the deceased, have been examined, without being
subjected to any cross-examination, the repetition of the version in the FIR
with the addition that the other eye-witness viz. PW-2 has been introduced as
being present in the car in which the deceased and PW1/informant were
travelling was not sufficient to fulfil the requirement for invoking power
under Section 319 of the Code. In the present case, learned senior counsel
contended that from Paragraph 15 of Brijendra Singh {supra), the following law
emerges, which was a case where witnesses had been examined and after that summons
under Section 319 of the Code were issued, and the Court held:
'15.
This record was before the trial court. Notwithstanding the same, the trial
court went by the deposition of complainant and some other persons in their
examination-in-chief, with no other material to support their so-called
verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing
more than the statements which was already there under Section 161 Cr.P.C.
recorded at the time of investigation of the case. No doubt, the trial court
would be competent to exercise its power even on the basis of such statements
recorded before it in examination-in-chief. However, in a case like the present
where plethora of evidence was collected by the IO during investigation which
suggested otherwise, the trial court was at least duty bound to look into the
same while forming prima facie opinion and to see as to whether 'much stronger
evidence than mere possibility of their (i.e. appellants) complicity has come
on record. There is no satisfaction of this nature. Even if we presume that the
trial court was not apprised of the same at the time when it passed the order
(as the appellants were not on the scene at that time), what is more troubling
is that even when this material on record was specifically brought to the
notice of the High Court in the Revision Petition filed by the appellants, the
High Court too blissfully ignored the said material. Except reproducing the
discussion contained in the order of the trial court and expressing agreement
therewith, nothing more has been done. Such orders cannot stand judicial
scrutiny.'
7. The private respondents also
cited Jamin v State of Uttar Pradesh, 2025 SCC OnLine SC 506. The private
respondents, collectively, sought dismissal of these appeals.
APPELLANT'S REJOINDER:
8. By way of rejoinder, learned
counsel for the appellant submits that though there has been consistency in the
stand of the appellant with regard to presence of all the private persons
concerned i.e., that they came in three cars and that their presence has also
been supported by two eye-witnesses, including the appellant, the SIT for
obvious reasons, as the case has a political nature, shielded the private
respondents. It was submitted that during trial, when in deposition, persons
claiming to be eye-witnesses take the name of the private respondents as being
present on the spot, it is always in the interest of justice that at the
earliest point of time possible, they are called upon, so that the trial does
not linger or has to revert back to an early stage, to enable the persons so
summoned to go through the paraphernalia of cross-examining all the witnesses,
which has to be in their presence. It was submitted that in the recent judgment
in Jamin {supra), the foundational facts were different inasmuch as the persons
who were summoned under Section 319 of the Code were still under investigation
by the police. Thus, in that view, the Court held there was no occasion for the
Court to jump the gun and issue summons under Section 319 of the Code.
STATE IN ABSENTIA:
9. Regrettably, despite service
of notice, none appeared for the State of Punjab. In this case, before the High
Court, the stand of the State was that the private respondents 'have rightly
been declared innocent.' The State should not forget that in criminal matters,
it acts as investigator and prosecutor and must be available to assist the
Courts when called upon so to do. Let a copy of this Judgment be despatched to
the Legal Remembrancer and Principal Secretary, Department of Legal and
Legislative Affairs, Government of Punjab by the Registry, for information and
appropriate remedial steps.
ANALYSIS, REASONING AND CONCLUSION:
10. Having thoughtfully
considered the submissions of learned counsel for the parties and upon going
through the materials available on record, we find that the order impugned
requires interference. Let us first survey the legal position pertaining to
Section 319 of the Code.
11. In Hardeep Singh v State of
Punjab, (2014) 3 SCC 92, a 5-Judge Bench explained:
'12.
Section 319 CrPC springs out of the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when guilty is acguitted) and this doctrine must
be used as a beacon light while explaining the ambit and the spirit underlying
the enactment of Section 319 CrPC.
13. It
is the duty of the court to do justice by punishing the real culprit. Where the
investigating agency for any reason does not array one of the real culprits as
an accused, the court is not powerless in calling the said accused to face
trial. The question remains under what circumstances and at what stage should
the court exercise its power as contemplated in Section 319 CrPC?
xxx
16. It
is at this stage that the comparison of the words used under Section 319 CrPC
has to be understood distinctively from the words used under Section 2(g)
defining an inquiry other than the trial by a Magistrate or a court. Here the
legislature has used two words, namely, the Magistrate or court, whereas under
Section 319 CrPC, as indicated above, only the word "court" has been
recited. This has been done by the legislature to emphasise that the power
under Section 319 CrPC is exercisable only by the court and not by any officer
not acting as a court. Thus, the Magistrate not functioning or exercising
powers as a court can make an inguirv in a particular proceeding other than a
trial but the material so collected would not be by a court during the course
of an inquiry or a trial. The conclusion therefore, in short, is that in order
to invoke the power under Section 319 CrPC, it is only a Court of Session or a
Court of Magistrate performing the duties as a court under CrPC that can
utilise the material before it for the purpose of the said section.
17.
Section 319 CrPC allows the court to proceed against any person who is not an
accused in a case before it. Thus, the person against whom summons are issued
in exercise of such powers, has to necessarily not be an accused already facing
trial. He can either be a person named in Column 2 of the charge-sheet filed
under Section 173 CrPC or a person whose name has been disclosed in any
material before the court that is to be considered for the purpose of trying
the offence, but not investigated. He has to be a person whose complicity may
be indicated and connected with the commission of the offence.
18. The
legislature cannot be presumed to have imagined all the circumstances and,
therefore, it is the duty of the court to give full effect to the words used by
the legislature so as to encompass any situation which the court may have to
tackle while proceeding to try an offence and not allow a person who deserves
to be tried to go scot-free by being not arraigned in the trial in spite of the
possibility of his complicity which can be gathered from the documents
presented by the prosecution.
19. The
court is the sole repository of justice and a duty is cast upon it to uphold
the rule of law and, therefore, it will be inappropriate to deny the existence
of such powers with the courts in our criminal justice system where it is not
uncommon that the real accused, at times, get away by manipulating the
investigating and/or the prosecuting agency. The desire to avoid trial is so
strong that an accused makes efforts at times to get himself absolved even at
the stage of investigation or inguirv even though he may be connected with the
commission of the offence.
xxx
55.
Accordingly, we hold that the court can exercise the power under Section 319
CrPC only after the trial proceeds and commences with the recording of the
evidence and also in exceptional circumstances as explained hereinabove.
xxx
78. It
is, therefore, clear that the word "evidence" in Section 319 CrPC
means only such evidence as is made before the court, in relation to
statements. and as produced before the court, in relation to documents. It is
only such evidence that can be taken into account bv the Magistrate or the
court to decide whether the power under Section 319 CrPC is to be exercised and
not on the basis of material collected during the investigation.
79. The
inguiry by the court is neither attributable to the investigation nor the
prosecution, but by the court itself for collecting information to draw back a
curtain that hides something material. It is the duty of the court to do so and
therefore the power to perform this duty is provided under CrPC.
xxx
83. It
is, therefore, not any material that can be utilised, rather it is that material
after cognizance is taken by a court, that is available to it while making an
inquiry into or trying an offence, that the court can utilise or take into
consideration for supporting reasons to summon any person on the basis of evidence
adduced before the court, who may be on the basis of such material, treated to
be an accomplice in the commission of the offence. The inference that can be
drawn is that material which is not exactly evidence recorded before the court,
but is a material collected bv the court, can be utilised to corroborate
evidence already recorded for the purpose of summoning any other person, other
than the accused. This would harmonise such material with the word
"evidence" as material that would be supportive in nature to
facilitate the exposition of any other accomplice whose complicity in the
offence may have either been suppressed or escaped the notice of the court.
84. The
word "evidence" therefore has to be understood in its wider sense
both at the stage of trial and, as discussed earlier, even at the stage of
inguiry, as used under Section 319 CrPC. The court, therefore, should be
understood to have the power to proceed against any person after summoning him
on the basis of any such material as brought forth before it. The duty and
obligation of the court becomes more onerous to invoke such powers cautiously
on such material after evidence has been led during trial.
xxx
89. We
have given our thoughtful consideration to the diverse views expressed in the
aforementioned cases. Once examination-in-chief is conducted, the statement
becomes part of the record. It is evidence as per law and in the true sense,
for at best, it may be rebuttable. An evidence being rebutted or controverted
becomes a matter of consideration, relevance and belief, which is the stage of
judgment by the court. Yet it is evidence and it is material on the basis
whereof the court can come to a prima facie opinion as to complicity of some
other person who may be connected with the offence.
90. As
held in Mohd. Shafi [Mohd. Shafi v. Mohd. Rafiq, (2007) 14 SCC 544 : (2009) 1
SCC (Cri) 889: AIR 2007 SC 1899] and Harbhajan Singh [(2009) 13 SCC 608: (2010)
1 SCC (Cri) 1135], all that is required for the exercise of the power under
Section 319 CrPC is that, it must appear to the court that some other person
also who is not facing the trial, may also have been involved in the offence.
The prereguisite for the exercise of this power is similar to the prima facie
view which the Magistrate must come to in order to take cognizance of the
offence. Therefore, no straitiacket formula can and should be laid with respect
to conditions precedent for arriving at such an opinion and, if the
Magistrate/court is convinced even on the basis of evidence appearing in
examination-in-chief, it can exercise the power under Section 319 CrPC and can
proceed against such other person(s). It is essential to note that the section
also uses the words "such person could be tried" instead of should be
tried. Hence, what is reguired is not to have a mini-trial at this stage by
having examination and cross-examination and thereafter rendering a decision on
the overt act of such person sought to be added. In fact, it is this mini-trial
that would affect the right of the person sought to be arraigned as an accused
rather than not having any cross-examination at all, for in light of subsection
(4) of Section 319 CrPC, the person would be entitled to a fresh trial where he
would have all the rights including the right to cross-examine prosecution
witnesses and examine defence witnesses and advance his arguments upon the
same. Therefore, even on the basis of examination-in-chief, the court or the
Magistrate can proceed against a person as long as the court is satisfied that
the evidence appearing against such person is such that it prima facie
necessitates bringing such person to face trial. In fact, examination-in-chief
untested by cross-examination, undoubtedly in itself, is an evidence.
91.
Further, in our opinion, there does not seem to be any logic behind waiting
till the cross-examination of the witness is over. It is to be kept in mind
that at the time of exercise of power under Section 319 CrPC, the person sought
to be arraigned as an accused, is in no way participating in the trial. Even if
the cross-examination is to be taken into consideration, the person sought to
be arraigned as an accused cannot cross-examine the witness(es) prior to
passing of an order under Section 319 CrPC, as such a procedure is not
contemplated by CrPC. Secondly, invariably the State would not oppose or object
to naming of more persons as an accused as it would only help the prosecution
in completing the chain of evidence, unless the witnessfes) is obliterating the
role of persons already facing trial. More so, Section 299 CrPC enables the
court to record evidence in absence of the accused in the circumstances
mentioned therein.
92.
Thus, in view of the above, we hold that power under Section 319 CrPC can be
exercised at the stage of completion of examination-in-chief and the court does
not need to wait till the said evidence is tested on cross-examination for it
is the satisfaction of the court which can be gathered from the reasons
recorded by the court, in respect of complicity of some other person(s), not
facing the trial in the offence.
xxx
105.
Power under Section 319 CrPC is a discretionary and an extraordinary power. It
is to be exercised sparingly and only in those cases where the circumstances of
the case so warrant. It is not to be exercised because the Magistrate or the
Sessions Judge is of the opinion that some other person may also be auilty of
committing that offence. Only where strong and cogent evidence occurs against a
person from the evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.
106.
Thus, we hold that though only a prima facie case is to be established from the
evidence led before the court, not necessarily tested on the anvil of
cross-examination, it reguires much stronger evidence than mere probability of
his complicity. The test that has to be applied is one which is more than prima
facie case as exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes unrebutted, would lead to
conviction. In the absence of such satisfaction, the court should refrain from
exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of
providing if "it appears from the evidence that any person not being the
accused has committed any offence" is clear from the words "for which
such person could be tried together with the accused". The words used are
not "for which such person could be convicted". There is, therefore,
no scope for the court acting under Section 319 CrPC to form any opinion as to
the guilt of the accused.
xxx
116.
Thus, it is evident that power under Section 319 CrPC can be exercised against
a person not subjected to investigation, or a person placed in Column 2 of the
charge-sheet and against whom cognizance had not been taken, or a person who
has been discharged. However, concerning a person who has been discharged, no
proceedings can be commenced against him directly under Section 319 CrPC
without taking recourse to provisions of Section 300(5) read with Section 398
CrPC.
xxx
117.3.
In view of the above position the word "evidence" in Section 319 CrPC
has to be broadly understood and not literally i.e. as evidence brought during
a trial.
Question
(ii)-Whether the word "evidence" used in Section 319(1) CrPC could only
mean evidence tested by cross-examination or the court can exercise the power
under the said provision even on the basis of the statement made in the
examination-in-chief of the witness concerned? Answer
117.4.
Considering the fact that under Section 319 CrPC a person against whom material
is disclosed is only summoned to face the trial and in such an event under
Section 319(4) CrPC the proceeding against such person is to commence from the
stage of taking of cognizance, the court need not wait for the evidence against
the accused proposed to be summoned to be tested by cross-examination.
Question
(iv)-What is the nature of the satisfaction required to invoke the power under
Section 319 CrPC to arraign an accused? Whether the power under Section 319(1)
CrPC can be exercised only if the court is satisfied that the accused summoned
will in all likelihood be convicted? Answer
117.5.
Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be
treated as if he had been an accused when the court initially took cognizance
of the offence, the degree of satisfaction that will be reguired for summoning
a person under Section 319 CrPC would be the same as for framing a charge. The
difference in the degree of satisfaction for summoning the original accused and
a subseguent accused is on account of the fact that the trial may have already
commenced against the original accused and it is in the course of such trial
that materials are disclosed against the newly summoned accused. Fresh
summoning of an accused will result in delay of the trial therefore the degree
of satisfaction for summoning the accused (original and subseguent) has to be
different.
Question
(v)-Does the power under Section 319 CrPC extend to persons not named in the
FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer
117.6.
A person not named in the FIR or a person though named in the FIR but has not
been charge-sheeted or a person who has been discharged can be summoned under
Section 319 CrPC provided from the evidence it appears that such person can be
tried along with the accused already facing trial. However, insofar as an
accused who has been discharged is concerned the reguirement of Sections 300
and 398 CrPC has to be complied with before he can be summoned afresh.'
(emphasis
supplied)
12. In Brijendra Singh {supra),
the Court reiterated, inter alia:
'13.
... However, since it is a discretionary power given to the court under Section
319 CrPC and is also an extraordinary one, same has to be exercised sparingly
and only in those cases where the circumstances of the case so warrant. The
degree of satisfaction is more than the degree which is warranted at the time
of framing of the charges against others in respect of whom charge-sheet was
filed. Only where strong and cogent evidence occurs against a person from the
evidence led before the court that such power should be exercised. It is not to
be exercised in a casual or a cavalier manner. The prima facie opinion which is
to be formed reguires stronger evidence than mere probability of his
complicity.'
(emphasis
supplied)
13. In Ramesh Chandra Srivastava
v State of Uttar Pradesh, (2021) 12 SCC 608, a 2-Judge Bench noted:
'10.
Vie say this for the following reason: The test as laid down bv the
Constitution Bench of this Court for invoking power under Section 319CrPC inter
alia includes the principle that only when strong and cogent evidence occurs
against a person from the evidence the power under Section 319CrPC should be
exercised. The power cannot be exercised in a casual and cavalier manner. The
test to be applied, as laid down by this Court, is one which is more than prima
facie case which is applied at the time of framing of charges.
11. It
will all depend upon the evidence which is tendered in a given case as to
whether there is a strong around within the meaning of para 105.'
(emphasis
supplied)
14. In Sukhpal Singh Khaira v
State of Punjab, (2023) 1 SCC 289, another 5-Judge Bench elucidated:
'15. At
the outset, having noted the provision, i± is amply clear that the power
bestowed on the court is to the effect that in the course of an inquiry into,
or trial of an offence, based on the evidence tendered before the court, if it
appears to the court that such evidence points to any person other than the
accused who are being tried before the court to have committed any offence and
such accused has been excluded in the charge-sheet or in the process of trial
till such time could still be summoned and tried together with the accused for
the offence which appears to have been committed by such persons summoned as
additional accused.
xxx
23. A
close perusal of Section 319CrPC indicates that the power bestowed on the court
to summon any person who is not an accused in the case is. when in the course
of the trial it appears from the evidence that such person has a role in
committing the offence. Therefore, it would be open for the court to summon
such a person so that he could be tried together with the accused and such
power is exclusively of the court. Obviously, when such power is to summon the
additional accused and try such a person with the already charged accused
against whom the trial is proceeding, it will have to be exercised before the
conclusion of trial. The connotation "conclusion of trial" in the
present case cannot be reckoned as the stage till the evidence is recorded,
but, is to be understood as the stage before pronouncement of the judgment as already_____held_____in
Hardeep_____Singh [Hardeep
Singh
v. State of Punjab, (2014) 3 SCC 92: (2014) 2 SCC (Cri) 86] since on judgment
being pronounced the trial comes to a conclusion since until such time the
accused is being tried by the court.
xxx
33. In
that view of the matter, if the court finds from the evidence recorded in the
process of trial that any other person is involved, such power to summon the
accused under Section 319CrPC can be exercised by passing an order to that
effect before the sentence is imposed and the judgment is complete in all
respects bringing the trial to a conclusion. While arriving at such conclusion
what is also to be kept in view is the reguirement of sub-section (4) to
Section 319CrPC. From the said provision it is clear that if the learned
Sessions Judge exercises the power to summon the additional accused, the
proceedings in respect of such person shall be commenced afresh and the
witnesses will have to be re-examined in the presence of the additional
accused. In a case where the learned Sessions Judge exercises the power under
Section 319CrPC after recording the evidence of the witnesses or after
pronouncing the judgment of conviction but before sentence being imposed, the
very same evidence which is available on record cannot be used against the
newly added accused in view of Section 273CrPC. As against the accused who has
been summoned subseguently a fresh trial is to be held. However while
considering the application under Section 319CrPC, if the decision by the
learned Sessions Judge is to summon the additional accused before passing the
judgment of conviction or passing an order on sentence, the conclusion of the
trial by pronouncing the judgment is required to be withheld and the
application under Section 319CrPC is required to be disposed of and only then
the conclusion of the judgment, either to convict the other accused who were
before the Court and to sentence them can be proceeded with. This is so since the
power under Section 319CrPC can be exercised only before the conclusion of the
trial by passing the judgment of conviction and sentence.
34.
Though Section 319CrPC provides that such person summoned as per sub-section
(1) thereto could be jointly tried together with the other accused, keeping in
view the power available to the court under Section 223CrPC to hold a joint
trial, it would also be open to the learned Sessions Judge at the point of
considering the application under Section 319CrPC and deciding to summon the
additional accused', to also take a decision as to whether a joint trial is to
be held after summoning such accused by deferring the judgment being passed
against the tried accused. If a conclusion is reached that the fresh trial to
be conducted against the newly added accused could be separately tried, in such
event it would be open for the learned Sessions Judge to order so and proceed
to pass the judgment and conclude the trial insofar as the accused against whom
it had originally proceeded and thereafter proceed in the case of the newly
added accused. However, what is important is that the decision to summon an
additional accused either suo motu by the court or on an application under
Section 319CrPC shall in all eventuality be considered and disposed of before
the judgment of conviction and sentence is pronounced, as otherwise, the trial
would get concluded and the court will get divested of the power under Section
319CrPC. Since a power is available to the court to decide as to whether a
joint trial is required to be held or not, this Court was justified in holding
the phrase, "could be tried together with the accused" as contained
in Section 319(1)CrPC, to be directory as held in Shashikant Singh [Shashikant
Singh v. Tarkeshwar Singh, (2002) 5 SCC 738: 2002 SCC (Cri) 1203] which in our
opinion is the correct view.
xxx
38. For
all the reasons stated above, we answer the questions referred as hereunder.
39.(I)
Whether the trial court has the power under Section 319CrPC for summoning additional
accused when the trial with respect to other co-accused has ended and the
judgment of conviction rendered on the same date before pronouncing the
summoning order? The power under Section 319CrPC is to be invoked and exercised
before the pronouncement of the order of sentence where there is a judgment of
conviction of the accused. In the case of acguittal, the power should be
exercised before the order of acquittal is pronounced. Hence, the summoning
order has to precede the conclusion of trial by imposition of sentence in the
case of conviction. If the order is passed on the same day, it will have to be
examined on the facts and circumstances of each case and if such summoning
order is passed either after the order of acquittal or imposing sentence in the
case of conviction, the same will not be sustainable.
40.(II)
Whether the trial court has the power under Section 319CrPC for summoning
additional accused when the trial in respect of certain other absconding
accused (whose presence is subsequently secured) is ongoing/pending, having
been bifurcated from the main trial?
The
trial court has the power to summon additional accused when the trial is
proceeded in respect of the absconding accused after securing his presence,
subject to the evidence recorded in the split-up (bifurcated) trial pointing to
the involvement of the accused sought to be summoned. But the evidence recorded
in the main concluded trial cannot be the basis of the summoning order if such
power has not been exercised in the main trial till its conclusion.
41.(III)
What are the guidelines that the competent court must follow while exercising
power under Section 319CrPC?
41.1.
If the competent court finds evidence or if application under Section 319CrPC
is filed regarding involvement of any other person in committing the offence
based on evidence recorded at any stage in the trial before passing of the
order on acquittal or sentence, it shall pause the trial at that stage.
41.2.
The court shall thereupon first decide the need or otherwise to summon the
additional accused and pass orders thereon.
41.3.
If the decision of the court is to exercise the power under Section 319CrPC and
summon the accused, such summoning order shall be passed before proceeding
further with the trial in the main case.
41.4.
If the summoning order of additional accused is passed, depending on the stage
at which it is passed, the court shall also apply its mind to the fact as to
whether such summoned accused is to be tried along with the other accused or
separately.
41.5.
If the decision is for joint trial, the fresh trial shall be commenced only
after securing the presence of the summoned accused.
41.6.
If the decision is that the summoned accused can be tried separately, on such
order being made, there will be no impediment for the court to continue and
conclude the trial against the accused who were being proceeded with.
41.7.
If the proceeding paused as in para 41.1 above, is in a case where the accused
who were tried are to be acquitted, and the decision is that the summoned
accused can be tried afresh separately, there will be no impediment to pass the
judgment of acguittal in the main case.
41.8.
If the power is not invoked or exercised in the main trial till its conclusion
and if there is a split-up (bifurcated) case, the power under Section 319CrPC
can be invoked or exercised only if there is evidence to that effect, pointing
to the involvement of the additional accused to be summoned in the split-up
(bifurcated) trial.
41.9.
If, after arguments are heard and the case is reserved for judgment the
occasion arises for the Court to invoke and exercise the power under Section
319CrPC, the appropriate course for the court is to set it down for re-hearing.
41.10.
On setting it down for re-hearing, the above laid down procedure to decide
about summoning; holding of joint trial or otherwise shall be decided and
proceeded with accordingly.
41.11.
Even in such a case, at that stage, if the decision is to summon additional
accused and hold a joint trial the trial shall be conducted afresh and de novo
proceedings be held.
41.12.
If. in that circumstance, the decision is to hold a separate trial in case of
the summoned accused as indicated earlier:
(a) The
main case may be decided by pronouncing the conviction and sentence and then
proceed afresh against summoned accused.
(b) In
the case of acguittal the order shall be passed to that effect in the main case
and then proceed afresh against summoned accused.'
(emphasis
supplied)
15. We are cognizant of the
observations in Shishupal Singh v State of Uttar Pradesh, (2019) 8 SCC 682 and
Yashodhan Singh v State of Uttar Pradesh, (2023) 9 SCC 108. A Coordinate Bench,
recently in Jamin {supra), has stated, inter alia:
'115. Vie summarise our findings
on the issues framed for consideration as follows:
a. The
High Court in exercise of its revisional jurisdiction was justified in setting
aside the order passed by the Trial Court rejecting the second application
preferred by respondent no. 2 under Section 319 of the CrPC as the same was
found to have been passed contrary to the settled position of law, suffering
from a patent illegality, thus, leading to serious miscarriage of justice.
b. Once
a superior court deems fit to interfere with an order passed by a subordinate
court, then any rectifications to such order passed in exercise of revisional
powers under Section 401 read with Section 397 of the CrPC must be treated on
the same footing as rectifications made by an appellate court and as a result
would relate back to the time the original order was passed.
c. By
virtue of relating back of the order passed by the High Court in a revision
petition, the summoning order passed by the Trial Court in compliance with the
order of the High Court would also relate back to the initial order rejecting
the second application under Section 319, and therefore could be said to have
been passed before the conclusion of the trial.
d.
Unlike cases where an application under Section 319 is being decided in the
first instance by the Trial Court, the conclusion of trial will have no bearing
on the adjudication of an application under Section 319 in terms of the
directions of the High Court passed in exercise of revisional jurisdiction.
e. The
legal effect of the order passed by the High Court relating back to the
original order of the Trial Court is that the Trial Court would not be rendered
functus officio for the purpose of considering the application under Section
319 after the conclusion of the trial. We say so because the Trial Court, in
considering the application under Section 319 after the conclusion of the
trial, merely gave effect to a revisional order directing it to consider the
application afresh which it had originally rejected.
f. The
summoning order dated 21.02.2024 was passed by the Trial Court in pursuance of
the directions issued by the High Court vide the revisional order dated
14.09.2021. Therefore, the same should be construed as an extension of the
revisional order passed by the High Court. The combined effect of the
revisional order passed by the High Court and the summoning order passed by the
Trial Court dated 21.02.2024 would be that the order of the Trial Court dated
19.07.2010 rejecting the second Section 319 application stood replaced and
substituted by the summoning order dated 21.02.2024. Thus, although the
summoning order in the present case came to be passed on 21.02.2024, that is,
after the conclusion of the trial, yet, it would be deemed to have been passed
on 19.07.2010 by virtue of the law expounded by this Court in Maru Ram (supra)
and Krishnaji Dattatreya Bapat (supra).
g.
Section 319 does not contemplate that a summoned person must be given an
opportunity of being heard before being added as an accused to face the trial.
A right of hearing would accrue only to a person who is already discharged in
the very same proceeding prior to the commencement of the trial. This is
different from holding that a person who has been summoned as per Section 319
CrPC has a right of being heard in accordance with the principles of natural
justice before being added as an accused to be tried along with the other
accused. However, after the rejection of an application under Section 319. a
right enures in favour of the proposed accused. Thereafter. if in exercise of
revisional jurisdiction, the High Court is to pass an order which is
prejudicial to the benefit which had already enured in favour of the proposed
accused, then the High Court is obligated in law to provide an opportunity of
hearing to the proposed accused. This is also the mandate as contained in
sub-section (2) of Section 401 of the CrPC.'
(emphasis
supplied)
16. The law contemplates and
provides for a different outcome under Section 319 of the Code, dependent on
the peculiar factual premises of a case. Juxtaposition of the law with the
instant factual backdrop reveals as under: It is true that the SIT found no
evidence against the private respondents, however such factum by itself puts no
fetters on the powers bestowed under Section 319 of the Code. Moreover,
eye-witnesses in the Trial Court have named the private respondents as persons
present on the site of occurrence. The hardship, were we to adjudge it at this
juncture, could be more if the private respondents are not summoned than
opposed to if they are.
17. Be it noted, the private
respondents will have all defences open to them before the Trial Court to put
forth their version of innocence, including by way of resort to
cross-examination. Trial being an exercise to unravel the truth, given the
depositions before the Trial Court, to absolve the private respondents based on
the SIT's findings alone, to our mind, may not be in the best interests of
justice. Indubitably, while an innocent person should not be punished, no
guilty person should go scot-free. The Trial Court could have better worded its
order through clearer reasoning. Reproduction of a passage from Ramkrishna
Forgings Limited v Ravindra Loonkar, (2024) 2 SCC 122 is apt:
'39. In
the recent past, from Kranti Associates (P) Ltd. v. Masood Ahmed Khan [Kranti
Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496: (2010) 3 SCC (Civ)
852] to Manoj Kumar Khokhar v. State of Rajasthan [Manoj Kumar Khokhar v. State
of Rajasthan, (2022) 3 SCC 501: (2022) 2 SCC (Cri) 1], the clear position in
law is that a court or even a quasi-judicial authority has a duty to record
reasons for its decision. Needless to add, "Reason is the heartbeat of
every conclusion. Without the same, it becomes lifeless." [Raj Kishore Jha
v. State of Bihar, (2003) 11 SCC 519: 2004 SCC (Cri) 212]...'
18. On an overall conspectus, the
discretion exercised by the Trial Court cannot be said to be
capricious/arbitrary/mechanical in juxtaposition with the facts, subject to the
comment supra. But then, this Court cannot be oblivious to the work pressure on
the learned Judges manning the District and Trial Courts. When we are satisfied
that a case is made out to summon the private respondents, in the totality of
the relevant considerations, the order impugned cannot withstand judicial
scrutiny and will have to be interdicted. Accordingly, the Impugned Order dated
18.07.2024 passed by the High Court is set aside and the Criminal Appeals are
allowed. The Trial Court shall issue fresh summons against the private
respondents. If they do not appear, the Trial Court shall make all efforts to
secure their appearance and proceed as per law.
19. Observations hereinabove are
restricted to the purpose of deciding the challenge to the Impugned Order and
shall have no bearing on the merits of the underlying case. All factual and
legal contentions are left open to be pressed into service before the Court
concerned, at the appropriate stage.
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